Houston v. Walton

• Decision Date: 16 December 1912
• Citation: 129 P. 263,23 Colo.App. 282
• Parties: HOUSTON et al. v. WALTON.
• Court: Colorado Court of Appeals

129 P. 263

23 Colo.App. 282

HOUSTON et al. v. WALTON.

Court of Appeals of Colorado

December 16, 1912

Appeal from District Court, Fremont County; Charles Cavender, Judge.

Action by Joseph Walton against David J. Houston and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Cunningham and Morgan, JJ., dissenting.

Hardy Sayre, of San Diego, Cal., and A.L Taylor and J.G. Schweigert, both of Canon City, for appellants.

J.H Maupin, of Canon City, and Charles D. Bradley, of Florence for appellee.

KING J.

Appellee brought his action in trespass against the city of Canon City David J. Houston, and eight others, appellants herein, to recover damages for entering certain rooms in said city, and taking therefrom and destroying personal property consisting chiefly of intoxicating liquors, but including other drinks and cigars. Appellee sued as assignee of the Canon City Labor Club, a corporation, which he alleged was the occupant of the premises and the owner and in possession of the goods at the time of their destruction, and charged that the goods were destroyed by said Houston and others at the instigation and request of the defendant city made by and through its duly qualified and acting officials. The damage claimed was the alleged value of the goods.

The first defense was a general denial. For a second defense, it was alleged: That at and prior to the time of the destruction of said goods an ordinance of said city was in full force and effect prohibiting the sale of intoxicating liquors within the limits of the city, and making it unlawful to keep such liquors for the purpose of sale within any building in said city, and further providing that the sale, or keeping for the purpose of sale, of any of such liquors constituted a nuisance, to be abated as any other nuisance, and that it should be unlawful to use any means or device, as the organization of a club, incorporated or not, for the purpose of evading any of the provisions of the ordinance, violation of any of which provisions subjected the person offending to a penalty of fine and imprisonment. That after the adoption of said ordinance the Canon City Labor Club was organized with intent and purpose of carrying on a saloon under the guise of a social club for the purpose of evading the provisions of said ordinance. That the goods alleged to have been destroyed were purchased by plaintiff and said club, and kept for the purpose of sale upon the premises and within the building mentioned in the complaint and answer, and were by plaintiff and said club being sold by the drink over the bar as at any saloon, and that such was the principal business of plaintiff and said club. That the city council had investigated the conduct of plaintiff and the club, and determined that the organization and carrying on of said club by plaintiff and his associates constituted a public nuisance under the provisions of said ordinance, and thereupon adopted the following resolution: "Be it resolved by the city council of the city of Canon City, Colorado, that the so-called 'social clubs' known as the Canon Jockey Club and the Canon City Labor Club, and each of them, be and hereby are, declared by said council to be public nuisances, and that the city marshal be, and hereby is, directed to proceed immediately without any delay whatever, to abate entirely and put an end to said 'clubs' as such public nuisances, and to arrest and bring before the police magistrate of said city all proprietors, officers, bartenders, clerks and employés of said 'clubs,' and confiscate and bring before the police magistrate of said city, all intoxicating, spirituous, malt, vinous, fermented and mixed liquors that are within the room or rooms, basement or basements and storage or warehouses of said 'clubs,' all of which liquors shall be disposed of as directed by said city council, and further, to take the names of all persons in said room or rooms or who are in or upon any of said premises at time of said arrests and confiscation." That the defendant Houston at all times mentioned in the complaint was the marshal of said city. That acting as such, and in the performance of his duties under said ordinance and resolution, he called to his aid his codefendants, entered the premises in which said alleged nuisance was being carried on, and did then and there abate the same, and arrest the plaintiff as the keeper of the premises and maintainer of the nuisance, and that all that was done by the defendants, or any of them, was done under said ordinance and resolution. A general demurrer to the second defense was sustained by the court, after which plaintiff voluntarily dismissed his cause of action as to the city. The cause was tried to a jury upon the issues joined by the complaint and the first defense, and submitted on an instruction by the court that, if the jury found for the plaintiff, it should assess his damage in the full amount alleged in the complaint as the value of the goods. The principal grounds upon which appellants attack the judgment are that the court erred in sustaining plaintiff's demurrer to the second defense, and in overruling defendants' motion for a new trial. Other minor objections are urged, but will require little consideration.

1. The sufficiency of the allegations of the special defense to constitute justification for defendants' acts is the most serious and important question involved in the case, not only to the litigants here, but as a matter of general interest and concern. Appellants contend that, because appellee's assignor was engaged in the unlawful selling of intoxicating liquors in violation of an ordinance of the city, that fact of itself made its place of business, and its business, a nuisance, which the city might lawfully and summarily abate by the destruction of such liquors, and that the ordinance pleaded in the second defense, supplemented by the action of the city council resulting in the resolution set forth herein, was sufficient to conclusively fix and determine the character of the place and the business of plaintiff and the club as a public nuisance, and authorize its abatement by destruction of the goods. But they further insist that, if the acts of appellants were illegal, still the business of plaintiff and his assignor was also illegal, and therefore the law will refuse them redress in civil damages--that, both plaintiff and defendants being law breakers with respect to the matters in litigation, the law and the courts will leave them where they find them--and, further, that, inasmuch as the goods were not such as could be lawfully sold within the city, they had no market value, and therefore were not property for the destruction of which civil damages could be awarded. If the second defense is sufficient, it is because of one or more of the following reasons: (1) The goods and business and place of business of plaintiff's assignor were nuisances per se, or nuisances by virtue of the ordinance pleaded. (2) Defendants had the right, at common law, or because so authorized by ordinance and resolution, to abate the nuisance in the manner shown, to wit, by destroying the goods. (3) The action being for the value of the goods bought, kept, and used in violation of the ordinance of the city, the courts will not lend their aid for their recovery. (4) The parties were in pari delicto. (5) Sale of the goods being prohibited, they had no value in law, and were not property for which substantial damages could be awarded.

The general statutes (paragraph 45 of section 6525) confer upon towns and cities the power "to declare what shall be a nuisance and to abate the same, and to impose fines upon parties who may create, continue, or suffer nuisances to exist." This grant of power does not, by its terms, provide for the abatement of nuisances, and is not self-executing for such purpose. It requires an ordinance to make it effective. Ridgeway v. West et al., 60 Ind. 371; City of Denver v. Mullen et al., 7 Colo. 345, 3 P. 693. The power of a municipality, under the foregoing statutes, to declare and abate an alleged nuisance, is discussed in City of Denver v. Mullen et al., supra, in which the court said: "The proper construction of this language is that the city is clothed with authority to declare by general ordinance what shall constitute a nuisance. That is to say, the city may, by such ordinance, define, classify, and enact what things or classes of things, and under what conditions and circumstances such specified things are to constitute and be deemed nuisances, *** not that the city council may, by a mere resolution or motion, declare any particular thing a nuisance which has not theretofore been pronounced to be such by law, or so adjudged by judicial determination." The facts in the case cited differ from those in the case at bar in this: that no ordinance was before the court defining nuisances; while in pleading the second defense in this case an ordinance is presented which declares the Canon City Labor Club and its business a nuisance, but provides no manner of abatement, except by the words "as any other nuisance." The cases are similar, however, in that the city in each case, without judicial determination, and by resolution, declared the particular thing under consideration a nuisance, and ordered its summary abatement by destruction of the property. In this respect the court said: "It is only certain kinds of nuisances that may be removed or abated summarily by the acts of individuals or by the public, such as those which affect the health, or interfere with the safety of property or person, or are tangible obstructions to streets and highways, under circumstances presenting an emergency. Such clear cases of nuisances per se are well...